Sexual Misconduct

Introduction

Pacific Lutheran University (PLU) is committed to providing an environment in which students can work, live, and study free from all types of sexual misconduct. Consistent with its Equal Educational Opportunity Policy, PLU prohibits any discrimination in education and employment on the basis of gender (see also PLU Human Resources Sexual Misconduct Policy). Sexual misconduct has a serious negative impact on the quality of the education experience. When an allegation of Sexual Misconduct is brought to the administration, and a Respondent is found to have violated this policy, PLU will issue sanctions which are commensurate with the violation and which reflect PLU’s determination to prevent and correct sexual misconduct to the fullest extent possible. All members of the community are expected to conduct themselves in a manner that does not infringe upon the rights of others, whether on or off campus. The Sexual Misconduct Policy has been developed to reaffirm these principles and to provide recourse for those individuals who believe they may have experienced or witnessed Sexual Misconduct. It also serves as a measure for the University to determine, after the fact, if behaviors violate the PLU Student Code of Conduct. It also sets out the University’s expectations for its students with respect to sexual communication, sexual responsibility, and sexual respect. The University will work to prevent and eliminate sexual misconduct by providing a multi-faceted educational program to promote awareness of acceptable and non-acceptable behaviors. The University reserves the right to take whatever measures – including immediate measures pending investigation and review – that it may deem necessary in response to an allegation of Sexual Misconduct in order to protect students’ rights and personal safety. Such actions are in keeping with the Special Provisions section of PLU’s Student Rights and Responsibilities Procedures. Measures may include, but are not limited to, PLU no contact orders, modification of living arrangements and class schedules, suspension from campus and/or reporting to the local police. The University reserves the right to impose sanctions ranging from warning to expulsion depending on the severity of the offense. In keeping with the Student Rights and Responsibilities Procedures, the University will consider the concerns of both the Complainant and the Respondent throughout the conduct process. This policy is intended to meet the requirements of applicable federal and state law. If this policy is inconsistent with any applicable law, it is the University’s intent to follow applicable law.

Overview

Sexual Misconduct is a broad term encompassing any unwelcome behavior of a sexual nature that is committed without Consent (as PLU defines it in this policy) and/or by force, intimidation, coercion or manipulation. As defined by PLU, the term Sexual Misconduct includes Non-Consensual Sexual Intercourse, Non-Consensual Sexual Contact, Sexual Harassment, Sexual Exploitation, and Sexual Intimidation. Sexual Misconduct can be committed by a person upon another regardless of gender, and it can occur between people of the same or different sex. It can occur between strangers or acquaintances, including people involved in a current or previous intimate or sexual relationship. Sexual Misconduct may vary in its severity and consists of a range of behavior.

Definitions

Pacific Lutheran University uses the following definitions in this policy: Sexual Activity: Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making someone touch another person with or on any of these body parts; any other intentional bodily contact in a sexual manner. Intercourse (anal, oral, or vaginal), however slight, with any object. In the context of this policy, Sexual Activity may also include the conduct preliminary to or involved in Sexual Harassment, Sexual Exploitation and Sexual Intimidation. Complainant: The person complaining of Sexual Misconduct. Respondent: The person accused of Sexual Misconduct. Consent: Consent is permission explicitly granted by an individual who is physically and mentally capable of providing it. It is the responsibility of the person who wants to engage in the sexual activity to insure that he or she has the valid Consent of the other to engage in the activity. PLU further defines Consent to include the following:

Consent is informed, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as Consent. Consent can be given by words or actions, as long as those words or actions create clear and mutually understandable permission regarding the conditions of sexual activity.

Consent to one form of sexual activity cannot imply Consent to other forms of sexual activity, even within the same intimate situation. Previous relationships or Consent cannot imply Consent to future sexual acts.

Consent cannot be procured by use of physical force, threats, intimidating behavior, or coercion.

Some individuals are unable to give Consent by reason of Incapacity or Physical Helplessness (as defined below). It is a violation of this policy to engage in sexual activity with someone you know to be, or should have known to be, Incapacitated or Physically Helpless.

Incapacity: For the purpose of this policy, Incapacity is a condition existing at the time of the incident which prevents a person from understanding the nature or consequences of the sexual act(s) whether that condition is produced by the influence of a substance, or from some other cause. Incapacity is a state where one cannot make a rational, reasonable decision because he/she lacks the ability to understand the who, what, when, where, why or how of the sexual interaction.

The use of alcohol or drugs can prevent an individual from giving valid Consent, even if the person appears to agree to sexual activity in the moment. Incapacity may also result from the influence of substances commonly known as “date rape” drugs. Possession, use and/or distribution of any “date rape” substances, including Rohypnol, Ketamine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another student is a violation of PLU policy. Incapacity may also result from, without limitation, developmental disability, mental disorder, chemical dependency, and/or age. Learn more about these substances at http://www.rainn.org/.

Physical Helplessness: Physical Helplessness refers to a person who is asleep, unconscious or for any other reason is physically unable to communicate, verbally or non-verbally, valid Consent. Coercion: Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get Consent from another. When someone makes clear that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive if Consent is not voluntarily or freely given, or if the individual giving it is not capable of doing so.

Violations of Sexual Misconduct

Violations of Sexual Misconduct include, but are not limited to the following prohibited behaviors:

Non-Consensual Sexual Intercourse is any sexual intercourse (anal, oral, or vaginal), however slight, with any object, by a person upon another regardless of gender, without Consent. Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, by a person upon another regardless of gender, without Consent. Sexual Harassment is gender‐based verbal or physical conduct that unreasonably interferes with or deprives someone of educational access, benefits or opportunities. There are three types of Sexual Harassment:

Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive/persistent and patently/objectively offensive that it alters the conditions of education, employment, or residence from both a subjective (the Complainant’s) and an objective (reasonable person’s) viewpoint.

Quid Pro Quo Sexual Harassment exists when there are unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; and submission to or rejection of such conduct results in adverse educational or employment action.

Retaliatory Harassment is any adverse employment or educational action taken against a person because of the person’s participation in a complaint or investigation of discrimination or Sexual Misconduct.

Sexual Exploitation occurs when a person takes non‐consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other Sexual Misconduct offenses. Sexual Intimidation involves, without limitation, threatening another person with a sex act against them, stalking (including cyber-stalking), and/or engaging in indecent exposure. PLU also prohibits Retaliation against any person who complains about Sexual Misconduct, any witness who testifies in a Review Meeting related to allegations of Sexual Misconduct, or anyone who engages in any similarly protected activity. Retaliation is an adverse action taken against another for reporting a complaint or supporting another’s complaint.

Resources and Support

Counseling and Support Services for ComplaintsPLU Victim Advocate is a professional who provides a safe and private place for individuals who have questions or concerns about sexual misconduct, intimate partner violence, or stalking. The Victim Advocate is obligated by law to keep reports confidential except for situations where the safety of an individual may be involved, at which point reporting becomes mandatory. The Victim Advocate provides the following: emotional support, arranges referrals for medical care, acts as a liaison for academic and campus services, discusses formal reporting options, assists in safety planning (including obtaining Protection Orders), and provides referrals to counseling and support groups on and off campus. Jennifer Warwick currently serves as the PLU Victim Advocate. An ombudsperson is trained by the Office of Student Rights and Responsibilities to serve as a resource during the Student Rights and Responsibilities Process. These ombudspersons are able to provide the following: emotional support, acts as a liaison for academic and campus services, and provides referrals to counseling and support groups on and off campus. Complainants may contact the office of Student Rights and Responsibilities to access a trained ombudsperson or for more information on the University’s procedures for dealing with Sexual Misconduct complaints. Other confidential support options are:

A student accused of Sexual Misconduct may want to have an ombudsperson that has been trained by the Office of Student Rights and Responsibilities to serve as a resource during the Student Rights and Responsibilities Process. These ombudspersons are able to provide the following: emotional support, acts as a liaison for academic and campus services, and provides referrals to counseling and support groups on and off campus. Respondents may contact the Office of Student Rights and Responsibilities to access a trained ombudsperson or for more information on the University’s procedures for dealing with Sexual Misconduct complaints.

Reporting

PLU encourages all members of the community to report any incidents of Sexual Misconduct or Retaliation, regardless of the alleged offender’s identity or position. Reports may be made to the following campus officials: Office of Student Rights & Responsibilities, Human Resources, Resident Directors, Resident Assistants, and Campus Safety. Students may also make a report to local law enforcement officials by calling 911. Campus officials will assist with reporting to law enforcement if requested.

A report will be handled discreetly, but information will be shared as necessary with investigators, witnesses, and the Respondent. This group of people will be kept as small as circumstances permit to maintain privacy to the extent reasonably possible. If the respondent is a PLU staff or faculty member, reports generally will be processed by Human Resources and will be investigated through the University Dispute Resolution Policy and Procedures. Complainants or witnesses may be hesitant to report to University officials because they fear that they themselves may be charged with policy violations, such as illegal drinking at the time of the incident. To encourage reporting, the University will primarily focus on the issue of Sexual Misconduct. While other potential policy violations cannot be completely overlooked, the University will typically address these situations by focusing on educational resources for the Complainant or witness. There is no time limit on making a complaint that this policy has been violated; however, it may be difficult to substantiate the allegations made in a complaint brought after significant time has passed. Therefore, prompt reporting of complaints is strongly encouraged.

Review Process

The University will process allegations of violations of this policy in substantially the same manner as it does allegations of other University policies, and thus students are referred to PLU’s Student Rights and Responsibilities Procedures. The University recognizes, however, the significant impact Sexual Misconduct allegations and experiences may have on the lives of students. PLU endeavors to approach all such situations with respect and concern for all involved, to review allegations without prejudgment or bias, and to provide a process that is as fair as it reasonably can be. Bearing in mind the emotionally charged atmosphere surrounding such incidents, PLU takes seriously the need to:

Take immediate action to preserve the safety and well-being of all involved until a Review Meeting of the allegations can be held.

Make available support services for Complainants and Respondents during and, to the extent it is consistent with PLU’s role as an educational institution, after the review process is concluded.

Preserve privacy to the extent it is reasonably possible to do so, balancing the privacy of the participants and PLU’s determination to prevent and correct Sexual Misconduct.

Investigate any such allegations promptly.

Balance the desirability of early resolution against the time needed for students to adequately prepare for Review Meetings.

Listen to and hear the Complainant’s allegations and the Respondent’s response to them. Thoughtfully consider and make a decision based on fact-based information that is credible and relevant.

When a Respondent is found Responsible for a violation of this policy, issue sanctions which are commensurate with the violation and which reflect PLU’s determination to prevent and correct Sexual Misconduct to the fullest extent possible.

Educate students that PLU prohibits Retaliation against a student that has reported a violation of this policy or testified in a Review Meeting, and provide an appropriate mechanism to report such Retaliation if it occurs.

Complainants and Respondents in Sexual Misconduct incidents will be informed of the outcome and sanctions of the Review Meeting, in writing. Students who bring any sort of Sexual Misconduct complaint against faculty or staff may or may not be informed of the outcome and sanction, because FERPA does not apply; or

The University may release publicly the name, nature of the violation and the sanction for any student who is found in violation of a University policy that is a “crime of violence,” including: arson, burglary, robbery, criminal homicide, sex offenses, assault, destruction/damage/vandalism of property and kidnapping/abduction. The University will release this information to the Complainant in any of these offenses regardless of the outcome.

Additional Provisions

Attempted Violations: Attempts to engage in any of the prohibited behaviors outlined in this policy may be treated by the University as a violation of this policy.

University as Complainant: As necessary, the University reserves the right to initiate a complaint, to serve as Complainant, and to initiate conduct proceedings without a formal complaint by the alleged victim of misconduct.

False Reports: University will not tolerate intentional false reporting of incidents. It is a violation of the Student Code of Conduct to make an intentionally false report of any policy violation, and it may also violate state criminal statutes and civil defamation laws. Any false reports will be addressed using the Student Rights and Responsibilities Procedures.

Sanction Guidelines: PLU takes allegations of Sexual Misconduct very seriously and will sanction those found Responsible for violating its Sexual Misconduct policy accordingly. Any student who is found to have violated the Sexual Misconduct policy will be subject to disciplinary action up to and including suspension and/or expulsion. Students should read the Student Rights and Responsibilities Procedures, Section IX for information about sanctions.

Notification of Outcomes: The outcome of a campus Review Meeting is part of the educational record of the responding student, and is protected from release under a federal law, FERPA. However, the University observes the legal exceptions as follows:

Complainants and Respondents in Sexual Misconduct incidents will be informed of the outcome and sanctions of the Review Meeting, in writing. Students who bring any sort of Sexual Misconduct complaint against faculty or staff may or may not be informed of the outcome and sanction, because FERPA does not apply; or

The University may release publicly the name, nature of the violation and the sanction for any student who is found in violation of a University policy that is a “crime of violence,” including: arson, burglary, robbery, criminal homicide, sex offenses, assault, destruction/damage/vandalism of property and kidnapping/abduction. The University will release this information to the Complainant in any of these offenses regardless of the outcome.

Alternative Review Meeting Options: For Sexual Misconduct complaints, and other complaints of a sensitive nature, alternative Review Meeting options may be given and/or requested. Possible alternatives may include placing a privacy screen between students during the Review Meeting, allowing students to participate from another room via technical means, permitting students to listen and respond to recorded testimony or such other means as the Assistant Director for Student Rights and Responsibilities deems most appropriate under the circumstances. These options are intended to help students feel more comfortable; they are not intended to work to the advantage or disadvantage of any student involved in the process.